Research Library Issues, no. 292 (2017)
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32 Association of Research Libraries Research Library Issues 292 — 2017 engaged more deeply with groups like the Authors Guild and other potential interests. While we were to some degree responding to the absolute inability of previous attempts to reach a consensus on process, a lack of involvement with possible rights holders made nearly certain that we would come into conflict at some point. Additionally, we did not adequately communicate to external observers, the media, and our community at large that we expected, even intended, to make mistakes. The entire purpose of the waiting period between identifying a prospective orphan and making said orphan available was to identify areas where we made mistakes. While the scope of some of our mistakes was fairly significant, the process was operating as designed. Finally, and this may seem to be a minor point but it is a lesson well learned by me, “optics” matter. I can only assume that if we had named this project the Rights Holder Identification project we may have met with different attitudes from external stakeholders. Snatching Victory from Failure’s Grasp The details of the lawsuit that brought the OWP to a premature end are readily available and have been commented on extensively elsewhere. That said, while certainly not welcome, the eventual lawsuit was never really unexpected by the university. Engaging in the creation of HathiTrust alone was a high-risk activity taking the further step of the OWP, particularly without significant rights holder buy-in, was so bold as to almost guarantee a legal response. While the time and initial facts of the lawsuit might not have been the ones we would have chosen for ourselves, we were always prepared for the eventuality. This strategy ended up proving effective in the long run. While the OWP has remained in stasis, the underlying issue—the legality of the digitizing of library books done by Google and the subsequent hosting and making available of those copies by HathiTrust—has been ruled in several venues to be a fair use, culminating with the Second Court of Appeals whose ruling is summarized below: